BHAGIRATHI JYOTIRAM KALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants - accused Nos. 1 to 3 were charged, tried and convicted of the offence under section 498-A (a) and (b) read with Section 34 of the Indian Penal Code (for short "ipc") , as well as, under Section 302 read with Section 34 IPC for murdering Nayana Parmeshwar kale, the wife of appellant No. 3 and daughter- in-law of appellant Nos. 1 and 2. Therefore, this common Appeal by the appellants.

(2.) The deceased had married appellant No. 3 sometime in the year 1992. She was staying with all the accused at Chikhali, taluka Mohol. Their relations were not good. The deceased, therefore, complained about the accused and also about the harassment for non-honouring their demand at the time of marriage, to her brother Navnath Nagnath kore, PW 5. She had also reported that appellant No. 3 was insisting for divorce. The matter was settled through PW 3, Deepak gaikward, Chief of Mohol Tahsil and, therefore, the deceased started living with the accused. However, as per the complainant, appellants were insisting for divorce and wanted her thumb impression on the Divorce deed. As the deceased refused and resisted the same, on 22nd March, 1994, appellant nos. 1 and 2 caught hold of her hands and accused No. 3 poured kerosene on her and set her on fire. The deceased, therefore, suffered burn injuries. The deceased was taken to the hospital by accused No. 3 initially at Mohol and then she was shifted to the Civil Hospital, solapur. PW 10, Dr. Pradeep Joshi admitted the deceased on 22nd March, 1994, at about 10. 00 a. m. with 90% burn injuries. As per the prosecution. On 22nd March, 1994, at about 10. 00 a. m. in the morning, Dr. Chanchure informed the Police Head Constable, Civil hospital Police Chowky, Solapur, that Ganpat mali (PW 11) , the cousin brother of the deceased, had admitted her in the hospital as the deceased had suffered 75% burn injuries at about 7.30 a. m. because of flaring up of the stove when she was preparing meals. The said information was recorded by Police Head constable Vasant Tulshiram Salunke (PW 9). Therefore, at about 10. 00 a. m. , Vasant visited the OPD and found that the deceased was under treatment and was not in a position to make any statement. He gave the Yadi (Exh. 45) to the Medical Officer and enquired about the deceased. The Medical Officer gave an endorsement on the said Yadi that Nayana was not in a position to give any statement. The deceased was thereafter treated and was in the same condition upto 10. 30 a. m. At 11.45 a. m. , as Nayana was in a condition to make the statement, Vasant (PW 9) contacted the Special executive Magistrate (for short "sem") Sharan basappa Tarapure (PW 12) and requested him, by giving Yadi (Exhibit-46, 46-A) to record the dying declaration of the deceased. The said yadi was received by the SEM. The SEM signed the Yadi at about 12. 00 noon. In the presence of Vasant (PW 9) , SEM Tarapure (PW 12) recorded the dying declaration of the deceased. When the dying declaration was recorded, PW 9, Vasant, was standing outside the Ward. As per the prosecution, at the relevant time, appellant No. 3 and his neighbours were present in the hospital. No relatives of the deceased from her parental side were present. After completing the formalities and requisite endorsement, dying declaration (Exh. 55) was recorded and all those documents (Exhs. 44, 45, 46-A and 31) have been duly proved by SEM Tarapure (PW 12) and PHC vasant (PW 9). The deceased however, succumbed to the injury on 27th March, 1994, after 5 days of the incident. The said dying declaration was also filed as a complaint (Exh. 47) , which was later on altered for the offence under Sections 302, 198-A and 34 of ipc. As per the prosecution, the death of the deceased was within 7 years of the date of her marriage. Dr. Sanjay Sawant, (PW 2) , on 27th march, 1994, after receipt of the dead body at 8.45 a. m. , conducted the Post Mortem- examination and recorded in the Post Mortem report (Exh. 22) , the burn injuries and opined that the deceased died because of toxaemia and shock due to 76% burn injuries.

(3.) The Panchanama of the scene of incident (Exhs. 19 and 62) was drawn on 23rd march, 1994, by PSI Shankarrao Deshmukh (PW 15). The Inquest Panchanama (Exh. 53) is dated 27th March, 1994. The accused were arrested and after completion of due enquiry and investigation, all the accused were charged. They denied the charges and pleaded "not guilty". They have filed their defence through written Statement (Exh. 70) in addition to statement under section 313 of the Criminal procedure Code (for short "cr. P. C. "). As per the defence, the deceased had no interest in cohabiting with appellant No. 3 as her marriage was without her will and, therefore, she used to run away to her parent's house frequently and never stayed continuously in her marital home. On the date of the incident, appellant no. 2 was fetching water from a Well and on hearing commotion, she came and extinguished the fire. Appellant No. 3, the husband of the deceased, was sleeping. He also extinguished the fire and in the process, received burn injuries. Appellant No. 1, being an order woman aged 80 years and with a weak eyesight, was not even in a position to see properly. Therefore, all the accused submitted that they had no concern with the burn injuries. Therefore, their further defence was of false implication. They also relied on Exh. 67, the yadi issued by PSO, Mohol, to the Medical officer, Rural Hospital, Mohol, wherein there is a reference of accidental burn injuries to the deceased.